Com. v. Aviles

• Decision Date: 22 October 1992
• Citation: 419 Pa.Super. 345,615 A.2d 398
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Maria AVILES, Appellant.
• Court: Pennsylvania Superior Court

Page 398

615 A.2d 398

419 Pa.Super. 345

COMMONWEALTH of Pennsylvania, Appellee, v. Maria AVILES, Appellant.

Superior Court of Pennsylvania.

Argued June 1, 1992.

Filed Oct. 22, 1992.

Peter C. Bowers, Philadelphia, for appellant.

George S. Leone, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

POPOVICH, Judge:

This case has been granted en banc consideration to assess a challenge to the judgment of sentence imposed following a bench trial and conviction for various drug offenses. We affirm.

The sole issue concerns the sufficiency of the evidence to sustain Maria Aviles' convictions. To assess such a claim, one looks to a time-honored test oft-stated in this jurisdiction; to-wit:

... in determining if the evidence was sufficient to sustain the conviction, the test is, whether accepting as true all of the evidence (be it direct or circumstantial) and all reasonable inferences arising therefrom, upon which the jury, or the trial court in a nonjury trial, could properly have reached its verdict, is it sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime of which [s/]he has been convicted.

Commonwealth v. Wrona, 442 Pa. 201, 204, 275 A.2d 78, 79-80 (1971). Accord Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Thornton, 494 Pa. 164, 430 A.2d 1168 (1981); Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979); Commonwealth v. Williams, 447 Pa. 206, 290 A.2d 111 (1972); Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963). Of course, the record in the instant appeal must be considered and read in the light most favorable to the Commonwealth. E.g., Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971).

So viewed, the evidence reveals that at 7:30 p.m. on the 23rd of January, 1989, Police Officer Daniel McEwen, in the company of five other officers, arrived at 181 West Wishart Street, Philadelphia, to execute a search warrant obtained on the strength of a first-time informant's account of drug activity and follow-up surveillances by Officer McEwen. ¹

Once at the site, Officer McEwen knocked on the front door and announced, "Police". Ms. Aviles opened the door and was informed that the police were requesting entry into the house. Consent was given. All those present were advised to remain calm and that the police had a search warrant. At this time, Ms. Aviles addressed Officer McEwen: "She said don't talk to anyone else, talk to me. This is my place."

A team of officers conducted a search of the premises. Within 10 minutes of their arrival, Officer McEwen was called to the second floor, rear bedroom and Officer Tames pointed to an open dresser drawer containing a brown metal box. The box was found to contain:

a) 54 plastic packets, each containing a white powder and sealed with gold tape;

b) 3 different sized sandwich baggies containing a white powder;

c) 7 clear plastic packets sealed with orange tape;

d) a small glass bottle containing a white powder; and

e) 3 black and green grinders and a screen, all of which contained a white residue. ²

Officer Tames stated that the door to the rear bedroom was open and he "did not break any lock". With regard to the metal box, Officer Tames testified:

... when I got the box out of the drawer ... it was closed and I just pulled this [latch] up like that and opened it. * * * I didn't pry it open. I just opened it.

Then, Officer McEwen proceeded to the second bedroom, which was the middle bedroom on the same floor. There McEwen observed Sergeant Perez "on his hands and knees removing floor boards ... from the eastern-most wall of that room." Retrieved from under the floor was an "open toolbox" containing $10,538 in cash. McEwen also found a second box in the middle bedroom which contained:

a) 1 scale with 5 weights marked 50, 20, 20, 10 & 5 grams;

b) Electronic heat-sealer (10"' X 10"') with a plug;

c) 2 strainers (10"' & 5"' in diameter);

d) Screen;

e) Hundreds of empty, clear plastic packets; and

f) 12 rolls of gold tape.

Sergeant Perez was the first officer to enter the middle bedroom, and, in respect thereto, he stated that he did not have to force the door open to get in: "The door [he] went into, to get into the room, [he] didn't break."

The police found proof that Aviles resided at the stated address. Likewise, Ms. Aviles admitted being the lessee and that, for approximately 5 years prior to the search, she had rented the rear and middle bedrooms for $35 a week to supplement her receipt of $474 a month from the Department of Public Welfare. ³ She and her 3 children slept on the second floor, front bedroom next to the middle and rear bedrooms.

Ms. Aviles testified that the rear and middle bedrooms had been rented to her sister (Zoraida) and brother-in-law (nicknamed "Flea") from the beginning of December, 1988 until the police arrived. ⁴ She denied having any knowledge of the drugs, the location of the drug paraphernalia or the sawed-out floor-compartment wherein the money was hidden.

It was Jorge's belief that the sawed-out floor-boards in the middle bedroom had been perpetrated by the police during their search since, he claimed, no such opening existed prior thereto. This was confirmed by Aviles' sister (Gladys), who rented the same two bedrooms from 1987 until 1988 and noticed no floor boards having been sawed through and used as a storage area. On the other hand, the police testified to the contrary: McEwen "didn't observe any sawdust or fresh type markings [in the floor boards]. They appeared to be well worn[, i.e., he] wouldn't say it was recently cut."

Lastly, Aviles testified that locks were placed on the doors to the rear and middle bedrooms by her sister immediately upon renting the rooms; she denied having any keys to the locks; she denied selling drugs; and she did not know about the metal boxes or the hole in the floor in the middle bedroom or its contents. The trial court, after hearing from both sides, found Ms. Aviles guilty as charged and revoked her bail. ⁵

Post-trial motions were filed, denied and sentence was imposed. On an initial appeal to this Court, a panel majority (with Cavanaugh, J. dissenting) reversed the judgment of sentence and discharged Ms. Aviles. However, on petition of the Commonwealth, this Court granted en banc certification to determine whether the Commonwealth established, beyond a reasonable doubt, Aviles' guilt for knowingly or intentionally possessing a controlled substance, possession with intent to manufacture or deliver a controlled substance and possession of drug paraphernalia. See 35 P.S. § 780-113(a)(16), (30) & (32) (Supp.1992).

The standard of review having been articulated earlier, it will not be repeated here, except we add to the appellate-review-equation the reliance upon "constructive possession" as a vehicle by which to prove Ms. Aviles' knowing or intentional possession of cocaine and drug paraphernalia. Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). Since the cocaine and drug paraphernalia were not found on Ms. Aviles' person, she was properly convicted only if the Commonwealth proved joint constructive possession. See Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974).

Our Supreme Court has stated on this subject that:

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as "conscious dominion." Commonwealth v. Davis, 444 Pa. 11, 115, 280 A.2d 119, 121 (1971). We subsequently defined "conscious dominion" as "the power to exercise that control."

Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Though these tests may be helpful and logical in the abstract, application to actual factual situations, particularly when multiple actors are involved, has proven difficult for our ... courts in cases involving controlled substances located on premises in joint possession but not on the actual person of any of the parties entitled to occupy those premises.

To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). We took a further step toward resolving these problems in Commonwealth v. Macolino, supra. In Macolino, contraband and otherwise legal items used in the drug trade were found in the common bedroom of the Macolinos, a married couple. We held that "constructive possession can be found in one defendant when both the husband and wife have equal access to an area where the illegal substance or contraband is found." 503 Pa. at 208, 469 A.2d at 135. See also Commonwealth v. Carroll, Pa. , 507 A.2d 819 (1986).

... We hold today that even absent a marital relationship constructive possession may be found in either of both actors if contraband is found in an area of joint control and equal access. * * * [In] the Macolino analysis[,] shared access to and control of the area where the contraband was found was critical.

Mudrick, supra, 510 Pa. at 308-09, 507 A.2d at 1213-14 (Emphasis added). Accord Commonwealth v. Grekis, 411 Pa.Super. 494, 601 A.2d 1275 (1992); Commonwealth v. Parsons, 391 Pa.Super. 273, 570 A.2d 1328 (1990); Commonwealth v. Santiesteban, 381 Pa.Super. 18, 552 A.2d 1072 (1988); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984).

The trial court concluded, in denying post-trial motions, that "Maria Aviles was the lessee at the subject premises and she had access to all the bedrooms, none of which were locked." Trial Court Opinion at 3. The evidence is consistent with such conclusions. Specifically,...